State of New Mexico v. United States Environmental Protection Agency

Filing 118

MEMORANDUM OPINION AND ORDER denying 80 MOTION to Expedite Decision on Motion to Dismiss the Complaint and Motion to Strike,granting 99 MOTION to Strike 80 ; denying supplemental brief 88 ; modifying Court's Order issued on 12/6/16 by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
THE STATE OF NEW MEXICO on
behalf of the NEW MEXICO
ENVIRONMENT DEPARTMENT,
Plaintiff,
v.

No. 16-CV-465 MCA/LF

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.,
Defendants,
consolidated with
NAVAJO NATION, a federally recognized
Indian Tribe, on its own behalf, and as
parens patriae on behalf of the Navajo people,
Plaintiff,
v.

No. 16-CV-931 MCA/LF

UNITED STATES OF AMERICA,
ENVIRONMENTAL PROTECTION
AGENCY, ET. AL.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Environmental Restoration,
LLC’s Motion to Expedite Decision on its Motion to Dismiss the Complaint and Motion
to Strike [Doc. 80]; Environmental Restoration’s Supplemental Brief in further Support of
Defendant Environmental Restoration, LLC’s Motion to Expedite Decision on Its Motion
to Dismiss the Complaint and Motion to Strike [Doc. 88]; and Plaintiff New Mexico’s
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Motion to Strike Defendant Environmental Restoration’s Supplemental Brief in Further
Support of its Motion to Expedite Decision on its Motion to Dismiss the Complaint and
Motion to Strike [Doc. 80], and in the Alternative, Motion for Leave to File Response
[Doc. 99]. The Court has considered the submissions, the relevant law, and is otherwise
fully informed in the premises.
BACKGROUND
The State of New Mexico filed this action on May 23, 2016 against the United
States Environmental Protection Agency (EPA), Gina McCarthy in her official capacity
as administrator of EPA, EPA’s contractor Environmental Restoration (ER), and three
mining companies. [Doc. 1] New Mexico alleges that, while conducting environmental
remediation of the Gold King Mine in Colorado, the EPA and ER “breached a collapsed
portal” of the mine, “releasing over three million gallons of acid mine drainage and
880,000 pounds of heavy metals into the Animas River watershed.” [Doc. 1, ¶ 1] The
acid mine damage traveled down-river into New Mexico and into the San Juan River in
New Mexico, causing extensive environmental and economic damage. [Doc. 1, ¶¶ 1-3]
As against Defendant ER, New Mexico brings six causes of action: cost recovery and
declaratory judgment under the Comprehensive Environmental Response, Compensation,
and Liability Act; injunctive relief under the Resource Conservation and Recovery Act;
public nuisance; trespass; and negligence/gross negligence. [Doc. 1, pp. 32-48]
On July 18, 2016, after being granted an extension of time [Doc. 13] (though, ER
complains, New Mexico refused to agree to a second extension ER requested [Doc. 80,
¶ 8]), Defendant ER filed a Motion to Dismiss the Complaint [Doc. 1] and Motion to
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Strike. [Doc. 32] Briefing of ER’s Motion to Dismiss was complete on August 15, 2016.
[Doc. 64] The three other mining company Defendants also filed motions to dismiss.
[Doc. 45; Doc. 46]
New Mexico served EPA and Gina McCarthy in mid-August, 2016 [Doc. 65; Doc.
66], and all parties participated in a status conference held by Magistrate Judge Fashing
on September 20, 2016. [Doc. 74] At that status conference, counsel for New Mexico
requested that the Court set the deadline for it to move for leave to amend its complaint
by November 15, 2016, once six months had passed since it filed a notice of tort claim
against the United States. [Doc. 74] New Mexico stated that it intended to add tort
claims against the EPA. [Doc. 74] No party objected, and Magistrate Judge Fashing
entered an Order Setting Deadlines, setting the deadline of November 15, 2016 for New
Mexico to file a motion for leave to amend its complaint and setting the deadline of
January 19, 2017 for the EPA to answer the operative complaint (whether that be the
original complaint or an amended complaint if leave is so granted to amend). [Doc. 77]
The day after the Magistrate Judge entered the Order Setting Deadlines,
Defendant ER filed the present Motion to Expedite Decision on its Motion to Dismiss the
Complaint and Motion to Strike. [Doc. 80] ER requested the Court to act on its pending
Motion to Dismiss before November 15, 2016. [Doc. 80] ER based its request on
concepts of judicial economy, concerns with delay, and New Mexico’s failure to grant
ER an extension to file a responsive pleading earlier in the proceedings. [Doc. 80] New
Mexico and Defendant EPA oppose ER’s Motion to Expedite Decision. [Doc. 81; Doc.
82]
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Thereafter, on an unopposed motion, this Court consolidated New Mexico’s action
with an action filed by the Navajo Nation, based largely on the same underlying events.
[Doc. 90] Navajo Nation brings its against EPA, ER, Harrison Western Corp. (an alleged
sub-contractor of ER’s), four mining companies, and ten John Does. [No. 1:16-CV-931
MCA/LF, Doc. 1]
The Court did not rule on ER’s Motion to Expedite prior to November 15, 2016,
and New Mexico filed its Motion for Leave to File Amended Complaint on the same date.
[Doc. 86] According to the Motion for Leave to File Amended Complaint, New Mexico
filed its notice of administrative claim pursuant to the Federal Tort Claims Act on May
17, 2016, and, because it had to wait six months before bringing suit, the earliest New
Mexico could file any tort claims was November 17, 2016. [Doc. 86, p. 3] New Mexico
further alleges that new information has been produced by EPA (consisting of over
35,000 documents) since New Mexico filed its Complaint, and, based on this new
information, New Mexico seeks to amend its Complaint to add new parties and additional
factual allegations. [Doc. 86, pp. 3-4] The Proposed Amended Complaint [Doc. 86-1]
does not add any new claims against ER, but does state additional factual allegations
against ER, as demonstrated by ER in the “redlined” complaint attached to the
Declaration of Peter C. Sheridan in Support of Defendant Environmental Restoration,
LLC’s Opposition to Plaintiff’s Motion for Leave to Amend Complaint. [Doc. 98-1] The
Mining Company Defendants and ER have filed responses in opposition [Doc. 92; Doc.
93; Doc. 97] to New Mexico’s Motion for Leave to File Amended Complaint. Briefing

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on the Motion for Leave to File Amended Complaint was complete on December 23,
2016. [Doc. 108]
On November 21, 2016, ER filed what it titled a Supplemental Brief in Further
Support of Defendant Environmental Restoration LLC’s Motion to Expedite Decision on
its Motion to Dismiss the Complaint and Motion to Strike. [Doc. 88] Therein, ER again
requests this Court to expedite its decision on its Motion to Dismiss. [Doc. 88, p. 6] ER
argues that New Mexico violated Federal Rule of Civil Procedure 15(a) by failing to
amend its complaint as a matter of course within 21 days of being served with ER’s
Motion to Dismiss. [Doc. 88, pp. 3-5] New Mexico filed a Motion to Strike ER’s
Supplemental Brief [Doc. 99], and ER filed a Response [Doc. 100].
In the meantime, EPA filed Defendant EPA’s Motion to Modify Scheduling
Orders. [Doc. 91] This Court granted EPA until the later of January 19, 2017 or 30 days
following this Court’s ruling on New Mexico’s Motion for Leave to Amend its Complaint
to respond to the operative complaints filed by both New Mexico and the Navajo Nation.
[Doc. 96]
ANALYSIS
It is not uncommon for the Court to be presented with a motion to dismiss and,
shortly thereafter, but after Rule 15(a)’s 21 day period for amendments as a matter of
course, a motion for leave to amend the complaint. This procedural posture is hardly
cause for another motion – one regarding the order in which the Court address the already
pending motions.

Rather, the Court has the discretion to consider either (or both)

motions in light of the other. For example, in Bauer v. City and County of Denver, 642
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Fed. Appx. 920 (10th Cir. 2016) (unpublished decision), the district court simultaneously
considered a pending motion to dismiss and a motion for leave to file an amended
complaint. Id. at 923-25. The district court conducted a futility analysis in deciding the
motion for leave to amend, assuming the facts in the proposed amended complaint were
true, and concluded that dismissal was warranted even if the complaint were amended.
Id. at 925. Our Tenth Circuit affirmed the district court’s dismissal and agreed with its
reasoning. Id. at 923-25. Thus, where it assists the orderly and expeditious resolution of
a case, it is appropriate for the Court to consider a motion to dismiss and a motion for
leave to amend concurrently, and this is such a case. The Court will consider the issues
raised in the pending Motions to Dismiss in conducting its futility analysis in deciding the
Motion for Leave to Amend Complaint, and, if ER or any other Defendants’ Motion to
Dismiss is meritorious, and leave to amend would not correct the deficiencies, the
claim(s) against such Defendant will be dismissed. In sum, ER’s Motion to Dismiss will
get due and timely consideration.
As to ER’s arguments, first, New Mexico did not “violate” Rule 15(a) in filing its
Motion for Leave to file Amended Complaint, because Rule 15(a)(2) clearly allows
amendments beyond the 21 day period for amendment as a matter of course by leave of
the Court, and New Mexico seeks leave of the Court. As to judicial economy, all parties
must bear in mind that this is a complex, multi-party case. Contrary to ER’s solely selfinterested assertions, judicial economy will be furthered by the Court having the benefit
of briefing by all affected parties on similar issues prior to issuing a decision. See Dietz
v. Bouldin, 136 S.Ct. 1885, 1891 (2016) (“[A] district court possesses inherent powers
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that are governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.” (Internal quotation marks and citations omitted)); c.f. In re Cooper Tire & Rubber
Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (stating that the appellate court “will grant a
writ [of mandamus] only when the district court has acted wholly without jurisdiction or
so clearly abused its discretion as to constitute usurpation of power” (internal quotation
marks and citation omitted)). Finally, ER’s argument that it will be prejudiced if the
Court allows the amendment is not persuasive. See Bylin v. Billings, 568 F.3d 1224,
1230-31 (10th Cir. 2009) (“[T]he expenditure of time, money, and effort alone is not
grounds for a finding of prejudice.”).
In sum, the most expeditious resolution of the issues in this case will be for the
Court to address all pending Motions to Dismiss, including those by the same Defendants
which raise the same issues in the Navajo Nation matter, at the same time as the Court
considers New Mexico’s Motion to for Leave to Amend Complaint.
Two other matters merit brief discussion. First, after November 15, 2016 (when
New Mexico filed its Motion for Leave to File Amended Complaint) came and went
without the Court’s decision on ER’s Motion to Expedite, ER filed a Supplemental Brief
in Further Support of Defendant Environmental Restoration, LLC’s Motion to Expedite
Decision on its Motion to Dismiss the Complaint and Motion to Strike. [Doc. 88] New
Mexico moved to strike the Supplemental Brief, arguing that it is either a surreply filed
without leave of the Court or it is a new motion and ER did not determine whether it was
unopposed before filing. [Doc. 88] Given that ER makes a new request for relief, the
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Court concludes that the Supplemental Brief is a new motion, and the Court will
summarily deny the motion for the failure to determine and recite the position of the
opposing parties. D.N.M. LR-Civ. 7.1(a). That said, the Court pauses to point out one
argument in ER’s Response to New Mexico’s Motion to Strike the Supplemental Brief.
[Doc. 100] ER states that, in the interest of judicial economy the Court should “decide
ER’s pending Motion to Dismiss the Complaint and Motion to Strike [Doc. 32], which
would render both ER’s pending Motion to Expedite and Plaintiff’s present Motion
moot.” [Doc. 100, pp. 1-2] In the alternative, ER requests the Court to “allow ER to
withdraw its Supplemental Brief.” [Doc. 100, p. 2] Along with the lack of merit within
the Motion to Expedite, these requests further suggest that the filing of the Motion to
Expedite and all of the subsequent related filings were not in the interest of judicial
economy. Though ER invokes judicial economy three times its filings addressed herein
[Doc. 80, p. 2; Doc. 83, p. 5; Doc. 100, p. 1], these filings have obviously detracted from
the efficient use of the Court’s time. It is one thing to invoke judicial economy, and it is
another thing to further judicial economy – and the Court expects all parties to further
judicial economy.
Second, the Court notes a consequential interaction between the present
procedural posture, as set forth in this Memorandum Opinion and Order, and the deadline
for the EPA to file a responsive pleading. In its Motion to Modify Scheduling Orders,
EPA sought (and was granted) leave to not file an answer or responsive pleading until
after this Court ruled on New Mexico’s Motion for Leave to File Amended Complaint.
[Doc. 91] However, in its Response to ER’s Motion to Expedite, EPA submits that the
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Court’s consideration of ER’s Motion to Dismiss prior to receiving related briefing by
EPA “could prejudice EPA, because Defendants potentially share common issues, such
that a decision on any one of Defendant’s motion[s] may have collateral consequences
for the other parties.” [Doc. 81] Indeed, the Court would prefer to have the position of
all parties on common issues prior to issuing a decision on a particular issue. However, it
is necessary for the Court to conduct a futility analysis in deciding New Mexico’s Motion
to Amend the Complaint, and, in conducting that analysis, the Court will consider the
arguments in the pending Motions to Dismiss. Accordingly, by this Order, the Court puts
EPA on notice that the Court will consider the other Defendants’ arguments within their
Motions to Dismiss when considering the Motion for Leave to File Amended Complaint,
whether EPA has submitted briefing on the issue or not. The EPA, therefore, must decide
whether it’s in the EPA’s best interest to file a pleading or motion responsive to the
original complaint and a response to the Motion for Leave to File Amended Complaint so
that the court has the benefit of the EPA’s arguments in considering the Motion.
CONCLUSION
WHEREFORE, for the reasons set forth above, the Court HEREBY:
1) DENIES Defendant Environmental Restoration, LLC’s Motion to Expedite
Decision on its Motion to Dismiss the Complaint and Motion to Strike [Doc. 80];
2) GRANTS Plaintiff New Mexico’s Motion to Strike Defendant Environmental
Restoration’s Supplemental Brief in Further Support of its Motion to Expedite
Decision on its Motion to Dismiss the Complaint and Motion to Strike [Doc. 80],
and in the Alternative, Motion for Leave to File Response [Doc. 99];
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3) DENIES Environmental Restoration’s Supplemental Brief in further Support of
Defendant Environmental Restoration, LLC’s Motion to Expedite Decision on Its
Motion to Dismiss the Complaint and Motion to Strike [Doc. 88];
4) MODIFIES the Court’s ORDER issued December 6, 2016, as follows: the EPA
has until February 13, 2017, to file either an answer or responsive motion to the
original Complaint, and, therewith, a response to the Motion to for Leave to
Amend Complaint. In the alternative, the EPA may waive its opportunity to file a
responsive pleading and a response to the Motion for Leave to Amend Complaint
and submit a responsive pleading after the Court has ruled on the Motion for Leave
to Amend the Complaint; however, the EPA will thereby waive any arguments it
could have raised in response to the Motion for Leave to Amend the Complaint.
SO ORDERED this 23rd day of January, 2017 in Albuquerque, New Mexico.

_________________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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